The ministry of women and child development said it would be legally and constitutionally impermissible to put him on trialagain as the Juvenile Justice (JJ) Board has already given its verdict of guilt of the juvenile and the prayer for his fresh trial has been rendered redundant.
"As such, under Article 20 of the Constitution as also Section 300 of criminal procedure code, there can be no second trial for the same offence, and the adjudication of guilt of the juvenile offender having been determined by the JJ Board under Juvenile Justice (Care and Protection of Children) Act, 2000, the second prayer does not survive nor was sustainable," the ministry said in its affidavit.
The Ministry's reply came on a plea filed by the father of the December 16 gangrape victim that the juvenility of an accused needs to be ascertained by a criminal court and not by the Juvenile Justice Board. The issue came up for hearing before a bench headed by Justice B S Chauhan, which tagged the petition filed by victim's parents with the plea of BJP leader Subramanian Swamy who has also sought fresh interpretation of the term juvenile.
Swamy has also contended that the Juvenile Justice (Care and Protection of Children) Act provides for a "straitjacket" interpretation of the term 'juvenile' that a person below the age of 18 years is a minor and it was in violation of the United Nations Convention for the Rights of the Child (UNCRC) and Beijing Rules on the issue.
The UNCRC and Beijing Rules say the presumption of "the age of criminal responsibility" be fixed while "bearing in mind the mental and intellectual maturity" of offender, he has said.
Raising the identical issue, the victim's father had said the August 31, 2013 verdict of the Board was not acceptable to the family so they are challenging the constitutional validity of the Juvenile Justice (Care and Protection of Children) Act 2000, as there is no other authority concerned to which they can approach for such relief.